“Since the applicant was undisputedly the group admin of WhatsApp group at the time when the said [objectionable] photograph was percolated and shared, he will be liable for the aforesaid offences irrespective of the fact that he became admin by default [after other members left],” the Madhya Pradesh High Court recently ruled.
Justice Prem Narayan Singh’s November 28th verdict came in a 2018 case seeking the review of a lower court’s order framing charges against the administrator of a WhatsApp group for the “objectionable” photos contained within it.
As per an initial FIR filed, the photo comprised of a nude woman alongside India’s flag, and was shared on a WhatsApp group called “Sankari Kamine” to allegedly “incite the religious sentiments of Hindus”.
The trial court’s order framed charges against the petitioner under various provisions of the Indian Penal Code, Information Technology Act, and Indecent Representation of Women (Prohibition) Act. Upholding its order, the Madhya Pradesh High Court added:
“…The learned trial Court, while framing of charges, must apply its judicial mind on the material placed on record and must be satisfied that there is strong possibility subsist that the accused has committed the offence. At the juncture of framing of charges, the Court has to prima facie examine whether there is sufficient ground for proceeding against the accused. Nevertheless, the Court is not expected to evaluate or analyse the findings in order to arrive at the conclusion that the material furnished by the prosecution are sufficient to convict the accused or not? In the case at hand, the findings of learned trial Court regarding prima facie case against the accused persons appear to be infallible…The revisional Court can interfere with the impugned order of the learned trial Court only when it is unjust and unfair. In case where the order of subordinate Court does not suffer from any illegality, merely because of equitable considerations, the revisional Court has no jurisdiction to re-consider the matter and pass a different order in a routine manner…this Court is of the view that there is no illegality, perversity or infirmity found in the impugned order of the learned trial Court regarding framing of charges against the petitioners, hence no interference is warranted by this Court.”
What was the petition about?: Following a complaint and FIR in the matter in 2018, a trial court in Madhya Pradesh’s Sarangpur subsequently framed charges against the petitioner, Junaid, under:
- The Indian Penal Code, 1860: Section 124A (sedition), Section 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony), and Section 295A (Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its
religion or religious beliefs);
- Information Technology Act, 2000: Section 67A (punishment for publishing or transmitting of material containing sexually explicit act, etc, in electronic form);
- Indecent Representation of Women (Prohibition) Act, 1986: Section 6 (penalties for sending indecent depictions of women).
Junaid was aggrieved by the trial court’s order, and subsequently filed a revision petition at the Madhya Pradesh High Court, pleading that the lower court’s order be set aside. He contended that:
- The trial court overlooked the contents of the case and wrongly framed charges against Junaid;
- The petitioner was not the WhatsApp group’s initial administrator. Two other members left the group, so Junaid became its admin by default;
- Junaid was not connected with the “objectionable” photographs—he neither liked nor shared them;
- No prima facie case could be made against Junaid regarding these offences as he didn’t create the “objectionable” photographs.
The prosecution argued that Junaid was liable for the charges since he was a member of the group, and didn’t leave it after viewing the photographs. Further, WhatsApp users are bound to abide by the platform’s terms and conditions—they cannot take protection that they are using the service lawfully if they use it for purposes other than prescribed. Finally, when framing charges, only the strong suspicion of the accused committing an offence, and a prime facies are needed.
Questions surrounding the mobile’s “running condition”: The petitioner argued that the forensic lab report found that the phone on which the photos had been sent wasn’t in “running condition”. The Court observed that the photograph was circulated on the 14th of February, 2018, and the phone was seized two days later from the petitioner. The report didn’t specify if the phone was working when the photograph was actually shared. “It cannot be assumed on the basis of only FSL [forensic science laboratory] report that on 14.02.2018, when the said objectionable photograph was percolated, the mobile of the petitioner was not in running condition,” the Court held, adding that such defences cannot be relied upon when initially framing charges against an accused.
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